Opinion.

originally passed was primarily to raise money, but also to restrict and regulate business of certain kinds by withholding the right to carry them on except from those who obtain a license therefor. It operates on the business as well as on the person. Granting the license is the means by which the named kinds of business are in a measure restricted, regulated and controlled, and is also a method for obtaining revenue.

The principle here alluded to is well stated by Judge Cooley:

"When the tax takes the form of a tax on the privilege of following an employment, convenience in collections will commonly dictate the requirement of a license, and the person taxed will be compelled to pay the tax as a condition to the right to carry on the business at all. In such a case the business carried on without a license will be illegal, and no recovery can be had on contracts made in the course of it." Cooley on Taxation, (2d Ed.) p. 572.

The statute is not a general administrative statute, applicable to all persons, but a regulative statute, applicable to certain kinds of business with revenue raising as a primary feature, but not its only purpose. It is to be considered a regulative statute even though some of the kinds of business therein mentioned do not at this period of time seem to be subjects for regulation, if there be named in it other kinds of business which at the time the act was passed were and now are regarded as properly subject to regulation. There can be no doubt that the framers of the statute intended to render unenforceable a contract made for the sale of intoxicating liquor by a person unlicensed to carry on that business, for the character of the business indicates such intent. This same intent must apply to all the kinds of business named in the act when passed, and it therefore includes contracts made by those engaged in business as real estate agencies for services in making sales of real estate.

It does not seem necessary, or important, to review the cases cited on both sides, which show an irreconcilable conflict. All recognize, or at least do not controvert, the principle, that the legislative intent and purpose of the act should be ascertained and if clearly indicated, or be clearly or reasonably inferable from

Opinion-Judgment Affirmed.

the subject-matter affected by the act, as well as its language, then it should control the court.

The demurrer to the replication to the fifth plea was rightly sustained, and there was no error in the court below, and the judgment will, therefore, be affirmed.

PHILADELPHIA, BALTIMORE AND WASHINGTON RAILROAD COMPANY, a corporation of the State of Delaware, defendant below, plaintiff in error, vs. FRANCES THERESA GATTA, plaintiff below, defendant in error.

1. APPEAL AND ERROR-MOTION FOR NEW TRIAL-DISCRETIONARY RUL

ING.

A motion for a new trial being addressed to the court's discretion, a writ of error will not lie to review the court's decision upon it, in the absence of an abuse of discretion.

2.

APPEAL AND ERROR-EXCEPTION-NECESSITY-DENIAL OF NEW TRIAL. In the absence of an exception to the denial of a new trial, such denial could not be reviewed to determine whether it was an abuse of discretion. 3. LIMITATION OF ACTIONS OPERATION OF STATUTE-AMENDED COM

PLAINT.

Where an action for wrongful death was instituted against a railroad company within the one-year limitation period prescribed by 20 Del. Laws, c. 594, by filing a præcipe, and the declaration filed alleged that deceased was an employee of the defendant company, the cause of action stated by an amended declaration, filed after the expiration of the year, alleging that he was an employee of the Pullman Company, and charging the defendant company with the duties owed to a stranger, was not barred by such statute; an action at law being commenced in this state, so as to stop the running of limitations, by præcipe, and not by the plaintiff's declaration, as in many

states.

4. PLEADING-DECLARATION-COUNTS.

A declaration may contain any number of counts, providing it does not violate the rule against vexatious pleading, and each count presents a separate and distinct cause of action, which is appropriate to the form of action pleaded.

The defendant must make separate answer to each count, where the declaration contains several proper counts.

6. PLEADING—Amendment.

Under Const. 1897, art. 4, § 24, and Rev. Code 1852, c. 112, § 11, authorizing the Superior Court to allow amendments, the court in its discretion may allow an amendment at any time before judgment, whether limitations would have run against the cause stated in the amendment, if made the subject of a separate action, or not.

Syllabus-Statement.

7. TRIAL-NEW TRIAL-CONFLICTING EVIDENCE.

Where, in an action for the death of a Pullman car employee engaged in repairing cars, from a car being shifted without warning to him by the defendant railroad company, plaintiff's evidence, taken alone, showed that the accident was due to the defendant's negligence while deceased was exercising proper care, the trial court properly refused to direct a verdict for defendant, or to set aside a verdict for plaintiff, though defendant's evidence on the determining issue whether the deceased was warned conflicted with plaintiff's evidence and was of a more positive character.

8. TRIAL-INSTRUCTIONS-DIRECTION OF Verdict.

The court should direct a verdict, when the evidence is not controverted, and the law as applied to that evidence produces but one legal result; but when a case involves an issue of fact, on which the evidence is conflicting and would support a verdict for either party, such issue should be left to the jury. 9. NEW TRIAL-GROUNDS-SUFFICIENCY OF EVIDENCE.

Where the evidence warrants the submission of issues of fact to the jury, the trial court will not, on motion for new trial, disturb the verdict because against the evidence, though the preponderance is against the verdict.

10. TRIAL-Weight of EVIDENCE-POSITIVE AND NEGATIVE EVIDENCEPROVINCE OF JURY.

The rule that positive testimony outweighs negative testimony does not conflict with the rule that the weight of conflicting testimony shall be left to the jury, but is merely a rule of measurement for use by the jury.

Where, in an action against a railroad company for the wrongful death of a Pullman car employee engaged in repairing cars, due to the shifting of a car without warning to him, the witnesses who testified that no warning was given while deceased was where he could have heard it had special opportunities, by reason of their being engaged in the railroad yard in occupations similar in the matter of danger, to hear and remember such warning if it had been given, their testimony was not purely negative in character.

(January 22, 1913.)

CURTIS, Ch., PENNEWILL, C. J., and WOOLLEY, J., sitting.
Ward, Gray and Neary for plaintiff in error.

Horace G. Eastburn (Anthony Higgins with him on the brief) for defendant in error.

Supreme Court, January Term, 1913.

WRIT OF ERROR (No. 4, June Term, 1912) to the Superior Court in and for New Castle County (No. 119, May Term, 1907, below). (See also 1 Boyce, 293; 2 Boyce 356, 551.) Action by Frances T. Gatta against the Philadelphia, Baltimore and Washington Railroad Company for damages for death of her husband, alleged to have been occasioned through the negligence of the defendant company. Verdict for plaintiff. Defendant brings error. Affirmed.

The court stated the case as follows:

Statement.

On the trial before the Superior Court for New Castle County, in which a verdict was rendered for the plaintiff, it appears from the testimony, as disclosed by the record, that Charles Gatta, the plaintiff's husband, was, on the day of the injury that caused his death, and for a considerable period theretofore, had been in the employ of the Pullman Company at its car works in the City of Wilmington; that the premises of the Pullman Company were located on the easterly side of and adjoining the elevated tracks of the main line of the defendant railroad company, its buildings and shops were situated some distance southerly therefrom, and between the elevated tracks of the railroad company and the shops of the Pullman Company, there was an inclosed yard; that within this yard placed parallel with the shops of the Pullman Company and the elevated structure of the railroad company were three railroad tracks, which were designated and known as tracks "A", "B" and "C", A being the one nearest the shops, C the one nearest the elevated road and furthest from the shops, and B the one between the other two; that these tracks were connected at or about the entrance to the yard with tracks and sidings belonging to the railroad company which further on were connected with its main line of railway; that tracks A, B and C, as well as the yard within which they were located, were the private property of the Pullman Company, upon which Pullman cars stood while being repaired, and over which the railroad company shifted Pullman cars in delivering or receiving them in its business of transportation.

It appears that between the shops and track A there was a wooden platform or flooring and a like platform or wooden passageway between tracks A and B, and that the distance between the shops and track A was about eight or nine feet, and that a heavy wooden fence, six or seven feet high, divided the end of the yard from Twelfth Street, somewhat obstructing the view beyond the yard. It is further shown that on the morning of the accident, five Pullman coaches were standing on track A, at least three of which were uncoupled and stood at short distances apart from each other, that two or more were on track B and that at least one was on track C; that upon that day, Gatta was working

Statement.

in what was known as the washstand and hopper gang, and a few minutes prior to his death had been making repairs to a hopper in a car on track B; that approximately five minutes before the injury, he left this car for the purpose of seeing his foreman, Cooney, who was in a shop a short distance east of track A; that in going from the car on track B to see his foreman, it was necessary for Gatta to cross track A; that some time on the morning of the accident a shifter had worked on track C, after which it left track C and went out of the yard; that while Gatta was in the shop the shifter approached the yard upon or toward track A, preparatory to doing shifting on that track and stopped either outside of the yard or partly without and partly within the yard; that while Gatta was still in the shop, the crew of the shifter, which was owned and operated by the defendant railroad company, caused notice to be given that shifting was about to be done on track A, by ringing the bell and by having one of its crew and one of the Pullman employees pass along each side of track A calling, "Look out on track A"; that this warning was given from two to four minutes before Gatta and Cooney came out of the shop on their way back to track B, but whether it was given before or after Gatta went into the shop is a matter of dispute. By some witnesses it was testified that the warning was repeated down to the time of the injury in such a manner that Gatta could and should have heard it. By others it was testified that no warning was heard after that given at a time when Gatta was in the shops and out of hearing.

It further appears that from the time Gatta left the building until he started between the cars, the cars were still, and while passing between them, Gatta stopped to let some one pass above him from the platform of one of the cars to the platform of the other, and as he afterward proceeded, the shifter caused the cars to come together and he was crushed.

It was shown that upon several of the buildings of the Pullman Company the following notice was posted: "Notice. Employees must not work under cars or on scaffolds or ladders inside of cars or pass between cars while cars are being shifted in the yard. John Cannon, Manager." As to the observance of this rule,